Professor William Birdthistle was a panelist on WTTW’s “Chicago Tonight” on February 7, 2017, for a discussion about how the Trump administration’s deregulation agenda may affect the Dodd-Frank Act and the fiduciary rule.
It sometimes feels like no one has anything good to say about the Supreme Court confirmation process. Some lament its lack of substance. (Back when she was a law professor, Justice Kagan described it as “a vapid and hollow charade.”) Some worry it has become too partisan. (Just last spring, Chief Justice Roberts said that a “sharply political, divisive hearing process … increases the danger that whoever comes out of it will be viewed in those terms.”)
Despite these criticisms, something the confirmation process does quite well is to focus the nation’s attention on the idea of the rule of law and the values of an independent judiciary. Usually the discussion of these topics are little more than obligatory checkboxes for senators and the nominee prior to rolling up their sleeves and discussing the more contentious issue of constitutional interpretation and hot-button topics such as abortion and gay rights. But today, when people from across the ideological spectrum see the most basic principles of legal process and judicial independence under threat from the executive branch, what before might have felt like platitudes take on new importance.
An independent federal judiciary is an indispensable part of our system of checks and balances. One of the important purposes of checks and balances, as contemplated by the Framers, is to prevent the seizure by factions of Congress and the Executive Branch. Another is to prevent over-reaching by both branches of government.
At this point the Trump administration is not likely, for political reasons, to be checked by either House of Congress, so it is the federal judiciary that will have to do much of the heavy lifting. For that reason, we all should vehemently protest the President’s recent ad hominem attacks on two federal judges: the federal judge presiding over the Trump University case and the federal judge in Seattle who recently issued a temporary restraining order against much of the President’s executive immigration order. Though the Supreme Court is our last resort, the entire federal judiciary is our first line of defense and must be protected at all costs.
Early last Friday morning, using an unusual legislative procedure, the Senate voted to repeal a law that was part of Dodd-Frank. Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Act directed the Securities and Exchange Commission to issue rules requiring public companies (issuers) to include in their annual reports information regarding payments by that issuer to a foreign government, or the federal government, for the purpose of the commercial development of oil, natural gas, or minerals. This provision was only tangentially related to the heart of Dodd-Frank reforms. The purpose of this Dodd-Frank provision was to increase transparency, prevent corruption, and allow governments, across the globe, to be held publically accountable. In August, 2012 the SEC, as required, adopted Rule 13q-1, which immediately ran into hurdles.
During the 2016 presidential campaign, candidate Donald Trump promised both to curb and to eliminate the EPA. A Florida congressman is planning to introduce legislation to abolish the agency by 2018. Going nuclear against the EPA will not be easy and the counterattacks will be fierce.
The EPA was created in 1970 by President Richard Nixon by Executive Order. It gathered into a new agency the scattered, weak environmental laws delegated to the Departments of Agriculture, then Health, Education and Welfare and Interior. Most foundational environmental laws enacted between 1970-1980 were assigned to the EPA for implementation and enforcement.
The President’s power to abolish agencies falls under government reorganization acts that trace back to the New Deal. The last one was enacted in 1977, before the Supreme Court invalidated legislative vetoes, so the current thinking is that the President must ask Congress for authority to abolish an agency. Even assuming that the current Congress grants the authority, then the fun starts. The air, hazardous waste and water pollution laws that EPA implements and enforces cannot be abolished by the Executive; the Constitution clearly grants that authority exclusively to Congress.
Does the Republican controlled Congress really want to create that level of chaos? Stay tuned.
Religious Discrimination and Jewish Refugees
Writing as a legal historian, I want to say that President Trump’s Executive Order of January 27th regarding immigration and refugees was entirely unprecedented but it was not. What I can say is that looking back at immigration laws and policies, like those in the Executive Order, we can see how they were entirely misguided and driven by racist stereotypes. I briefly want to point to two such events involving Jewish refugees and immigrants.
In 1892 poor Eastern European Jewish refugees attempting to enter the United States spent months in U.S. quarantine under the mistaken belief that they were carriers of typhoid and later cholera. Such hysteria was driven by the wide-spread stereotype that such Jews were dirty, dangerous, and that they polluted the Christian body of the nation. Protecting the nation’s security was thus mapped on to the Jewish body. At the time, no one brought a habeas petition on behalf of those detained. Rather Jewish charities and others cooperated with officials hoping that the ban would soon be lifted.
Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”
All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge — and especially the job of a Supreme Court justice — is much more complex and nuanced than catchphrases like “applying the law as written” suggest.
The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations.
The ACS Chicago Lawyer Chapter and the Chicago-Kent College of Law and Northwestern University School of Law Student Chapters hosted a panel discussion on progressive advocacy and activism under the Trump administration.
Professor Carolyn Shapiro was a guest on CLTV’s “Politics Tonight” on February 1, 2017, to discuss President Trump’s nomination of Circuit Judge Neil Gorsuch to the Supreme Court. She highlighted key questions senators might have for Judge Gorsuch and explained weaknesses of originalism.
Professor Harold Koh of Yale Law School delivered Chicago-Kent’s annual Centennial Lecture, titled “Preserving the International Rule of Law in the Trump Administration,” on January 31, 2017.